Citation Nr: 21031524 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-21 024 DATE: May 24, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the entire period on appeal, the Veteran's service-connected PTSD manifested as occupational and social impairment with reduced reliability and productivity; however, ooccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, has not been shown. CONCLUSION OF LAW Effective January 7, 2013, the criteria for a 50 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to April 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran claimed service connection for PTSD in January 2013. In July 2013 his claim for PTSD was denied; however, he was awarded service connection for anxiety with an initial rating of 10 percent disabling. The Veteran appealed in August 2013, asserting that his condition was not anxiety but PTSD. The RO continued its stance in an April 2015 statement of the case (SOC). The Veteran appealed to the Board in June 2015, maintaining his claim that his condition was PTSD, while also seeking a higher evaluation. The Veteran further stated that he believed his prior VA examination had been inadequate and severely rushed. In August 2018, the Board remanded the issue to obtain a new VA medical examination and clarify the Veteran's diagnosis. The requested VA examination was conducted in June 2019. Following this exam, a May 2020 rating decision increased the Veteran's initial rating for anxiety from 10 percent disabling to 30 percent and granted the Veteran service connection for PTSD from June 27, 2019 with a rating of 50 percent disabling. In March 2021 the Veteran was issued a supplemental statement of the case (SSOC) characterizing the Veteran's condition as PTSD for the entire relevant period, with an initial rating of 30 percent disabling from January 7, 2013 and a rating of 50 percent disabling from June 27, 2019. The Board notes that, while this claim formerly encompassed entitlement to service connection for PTSD and increased rating for anxiety, the above history indicates that service connection for PTSD has been granted and his psychiatric disorder has been recharacterized to reflect this diagnosis. The remaining issue before the Board is entitlement to a higher evaluation for the Veteran's service-connected psychiatric disorder. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating of 50 percent disabling for PTSD is granted. The Veteran's service-connected PTSD has been rated pursuant to 38 C.F.R. § 4.130, DC 9411. The Veteran's PTSD is rated as 30 percent disabling prior to June 27, 2019 under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 30 percent rating is assigned for PTSD when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. A 50 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Turning to the evidence of record, a VA PTSD screen from August 2012 found the Veteran met DSM-IV criteria for PTSD related to combat trauma. Specifically, the Veteran reported A: a traumatic event associated with intense fear or horror; B: reexperiencing the traumatic event through intrusive thoughts or recollections; C: avoidance in the form of anhedonia, restricted affect, and active avoidance of events or thoughts that may be reminders of the trauma; D: increased arousal in the form of hypervigilance and insomnia; E: symptoms lasting longer than one month; and F: significant distress or impaired occupational or social functioning that was chronic, or present for more than three months. The Veteran elaborated on his symptoms, relating that he could not stand crowded places, he needed to have lights on at home because he felt someone was hiding and waiting for him in the dark, he experienced flashbacks while driving, feeling nothing after a well-regarded grandparent passed away, anhedonia, and sleeping three to four hours a night. Following this positive PTSD screen, the Veteran was prescribed Sertraline for his mood. See May 2020 CAPRI, pages 159-163. At a November 2012 VA appointment the Veteran was observed to have good, average hygiene, neutral mood, linear and goal-directed thought process, and good judgment and insight. He was also observed to be alert and oriented in four spheres, and he denied suicidal or homicidal ideation and hallucinations. The Veteran reported interrupted sleep, waking every two hours, and continued nightmares, as well as disliking large populated areas. He further reported not feeling comfortable even with his back against the wall. After this appointment his prescription for Sertraline was replaced with one for Paxil. See May 2020 CAPRI, page 150. During a February 2013 VA appointment the Veteran was observed to have good, average hygiene, full affect, linear and goal-directed thought process, and good judgment and insight. He was also observed to be alert and oriented in four spheres. He denied suicidal or homicidal ideation as well as hallucinations. The Veteran stated he was active in his campus's veteran organization and that he was trying to socialize a little. He also reported attending a recent concert with his spouse and, despite needing to take breaks to go outside, being able to stay the entire time. See May 2020 CAPRI, page 146. In May 2013 the Veteran underwent a VA examination for PTSD. Ultimately, the examiner determined that the Veteran did not meet the full criteria for PTSD; however, she assessed the Veteran with anxiety disorder NOS. During the exam, the Veteran reported A: a traumatic event associated with intense fear or horror; B: reexperiencing the traumatic event through recurrent distressing dreams of the event; C: no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness; and D: increased arousal in the form of hypervigilance and difficulty falling or staying asleep. The durations of these symptoms were not documented. The Veteran reported anxiety, suspiciousness, and chronic sleep impairment. Specifically, he reported that he was able to be around large numbers of people for brief periods of time, but he felt uncomfortable in such situations. He elaborated that he would occasionally leave some of his college classes because of the large number of students in the classroom. The Veteran also described situations in which he had left bars while hanging out with friends because there were too many people present. Regarding his sleep, he reported sleeping four to six hours per night, and experiencing combat- related nightmares five to ten times per month. See June 2013 C&P Exam." June 2015 VA records show that early in the month the Veteran reported suicidal ideation, with thoughts to turn the wheel of his truck while driving. He was observed to be unkempt but cooperative, with monotonous speech, depressed mood, flat affect, coherent and goal-directed thought process, grossly intact sensorium and cognition, intact memory and concentration, above-average intelligence, limited insight, and fair judgment. He was also observed to be alert and oriented in three spheres. Later the same month he was noted to have PTSD with some improvement in anxiety, and he reported that his suicidal ideation was less intense. See May 2020 CAPRI, pages 125, 139, 144. In July 2015 VA records show the Veteran was unshaven, with depressed mood, blunted affect, psychomotor retardation, limited insight, adequate concentration, goal-directed conversation, and no objective evidence of psychosis. He was seen to be alert and oriented in four spheres. In late July, his affect was observed to be brighter with improved mood as evidenced by improved psychomotor activity and increased spontaneity. See May 2020 CAPRI, pages 117-9. At a March 2016 VA appointment the Veteran was observed to be appropriately groomed, with good eye contact, normal and clear speech, depressed mood, blunted affect, goal-directed through process, and fair judgment and insight. He was seen to be alert and oriented in four spheres, and he denied hallucinations. While the Veteran denied active suicidal or homicidal ideation, he admitted thoughts of cutting himself two days prior. During the appointment, the Veteran reported working full-time as a computer programmer while living with his wife of four years and two-year-old son. He reported sleeping four to five hours nightly with predator-type nightmares two to three nights weekly. See May 2020 CAPRI, page 98. During a May 2018 VA appointment the Veteran was observed to have good grooming and hygiene, with anxious mood, mildly anxious affect, good eye contact, logical and coherent, goal-directed thought processes, and good insight and judgment. He was seen to be alert and oriented in four spheres, and his thought content was void of homicidal ideation, hallucination, paranoia, or delusions. The Veteran denied suicidal thoughts but admitted frequently feeling overwhelmed. He also reported continuing problems with anxiety, hypervigilance, interrupted sleep, and panic attacks daily. The Veteran elaborated that his nightmares and flashbacks still occurred, and he was used to it. He related that he was hypervigilant at night when it was quiet at home. The treating physician noted the Veteran had called within the past three months for panic. The Veteran's medications at this time were Lorazepam, Prazosin, and Trazodone; however, later in the month the Veteran reported that Lorazepam at the higher dose no longer helped his anxiety. At that time the Veteran also reported no longer having dreams, and feeling tired, low-energy, with low motivation; however, he denied suicidal thoughts. See May 2020 CAPRI, pages 61, 64. At an October 2018 VA appointment the Veteran was seen to have fair eye contact, normal movements, normal speech, worsening anxiety, restricted and flat affect, linear/goal directed/coherent/logical thought process, limited insight, and limited judgment. He denied suicidal or homicidal ideation, hallucinations, or paranoia. The Veteran reported worsening of panic attacks, with them occurring on a daily basis after tapering Lorazepam. He stated his nightmares were the same, and described fearing that someone might enter his house at night in the dark. See May 2020 CAPRI, page 37. During a November 2018 VA appointment the Veteran reported patrolling outside and inside his house, concerned that someone might break in and harm him and his family. He described experiencing panic attacks with these thoughts, with increased heart rate and deepened breathing. See May 2020 CAPRI, page 26. In December 2018 the Veteran reported attending a holiday event with his family on a crowded antique train with screaming kids. He described the experience as being awful for him. On the positive side, he said that he had made a friend with shared interests in doing quiet activities and hanging out. See May 2020 CAPRI, page 18. During a January 2019 VA appointment the Veteran reported attending a holiday event with his family and going to Walmart to practice his skills. He related developing a hobby shared with a friend. However, the Veteran also reported having significant anxiety connected with hypervigilance, needing to see his surroundings, and getting triggered by driving, potholes, high buildings, overpasses, etc. See May 2020 CAPRI, page 16. In February 2019, VA records show the Veteran was well-groomed, with normal speech and eye contact, calm, relaxed, with serious demeanor, normal thought process and content, logical and goal directed. He did not report psychotic or manic symptoms. His mood was anxious and depressed, and he showed constricted affect. He described being triggered at work by people walking behind his cubicle. See May 2020 CAPRI, pages 13-4. The Veteran underwent an additional VA examination in June 2019, during which the examiner assessed him with PTSD, with occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran was groomed and dressed, without evidence of loose associations, flight of ideas, circumstantial speech, or tangential speech. The Veteran's abstract thinking was good, and he denied present suicidal ideations, plan, or intent. He denied past or present homicidal ideation, plan, or intent, and denied hallucinations. The Veteran did report paranoia at home and in public, but he denied obsessional thought processes, and none were noted. The Veteran's sensorium was clear, and he did not appear to be confused; rather, he was alert and oriented in four spheres and did not have problems focusing. The examiner assessed the Veteran with fair to good judgment and insight. The Veteran reported his memory was not good and that he had problems remembering names, dates, appointments, and to take his medications often. He also reported anxiety, panic attacks that occurred weekly or less often, sleep impairment, disturbances in motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Regarding his social difficulties, during this June 2019 exam the Veteran reported that, after his time in the military, his social life was good at first but then started dwindling. He lost interest in friends and described his current self as a hermit. While he described social activities with his family such as holidays and birthdays, he stated he did not engage in social activities with friends or have friends that he spoke to. Regarding his relationships, he reported that he and his child got along while he and his wife had their ups and downs. He stated that he was estranged from his mother and had no contact with his siblings. He also denied having leisure activities he enjoyed. At the time of the exam, the Veteran was prescribed Prazosin, Trazodone, Citalopram, and Hydroxyzine. The June 2019 examiner clarified that the new diagnosis of PTSD was a correction of the previous diagnosis. While he was previously diagnosed with anxiety disorder, his anxiety symptoms were currently a factor of his PTSD and better accounted for by PTSD. See June 2019 C&P Exam. Finally, VA records from August 2019 noted the Veteran still had PTSD symptoms, despite being on medications. He was observed to be pleasant and cooperative, with fair eye contact, no abnormal retardation or agitation in movement, normal speech, linear and goal-directed coherent and logical thought process, limited insight, and limited judgment. The Veteran denied suicidal or homicidal ideation, hallucinations, or paranoia. He did report feeling anxious and fearful that someone would come to his house and stated that he was mostly fearful at night in the dark. He further reported nightmares, and that he mostly isolated himself and stayed at home to avoid places, people, and conversation. He stated that he was currently working. After this visit the Veteran began tapering Lorazepam and was started on Paroxetine. See May 2020 CAPRI, page 57. After a review of the evidence of record, the Board finds that an initial rating of 50 percent is warranted. During the August 2012 VA PTSD screen the Veteran reported restricted affect in the form of a lack of emotion at a grandparent's death, anhedonia, sleep impairment, hypervigilance, flashbacks, active avoidance of events or thoughts that may be reminders of the trauma. His condition also made it difficult for him to establish and maintain social relationships, as he could not stand to be in crowds such as in restaurants without feeling the need to leave. The next available records for PTSD, from June 2015, note the Veteran had visited the emergency room for suicidal ideation. He was also observed to be unkempt, with monotonous speech, depressed mood, flat affect, limited insight, and fair judgement. Throughout the remaining period, he reported symptoms such as psychomotor retardation, blunted affect, and limited insight in July 2015, thoughts of self-harm, interrupted sleep, and nightmares in March 2016, daily panic attacks in October 2018, patrolling behavior with panic attacks in November 2018, and anxiety and depressed mood with constricted affect in March 2019. Based on the foregoing, the Board finds that a 50 percent rating is warranted from January 7, 2013. The Board does not find, however, that the Veteran's symptoms are of such a frequency, severity, or duration that a higher 70 percent rating is warranted at any time during the appeal period. While the Veteran reported in June 2019 that he his memory was not good and that he had problems remembering names and dates, the Veteran has never been found to have severe memory impairment. He has not reported ever being severely disoriented. He has never had any delusions or hallucinations, and he has never been found to be psychotic or to have grossly inappropriate behavior. The Veteran was noted to be unkempt in June 2015, but he has generally been found to be adequately groomed and with average hygiene. The Veteran has always been found to eb alert and oriented. He has at times had flat affect or speech, but has generally been found to have normal speech and goal-directed, linear thought process. The Veteran has never been found to have speech that was illogical, obscure, or irrelevant. The Veteran did report having thoughts about cutting himself in March 2016, which the Board acknowledges is a very serious symptom, but there is no indication that the Veteran actually has been cutting himself or self-harming during the appeal period. The Board therefore finds that this symptom, while serious, is not comparable to the more serious types of symptoms that are associated with a higher 70 percent rating, and this isolated report is not of sufficient severity, frequency, or during to warrant a higher rating. The Veteran has indicated that he self-isolates and is uncomfortable in crowds. He has, however, participated in his campus' veterans organization, and reported socializing a little. Later, he reported that he was not socializing with friends, but he did maintain a good relationship with his wife and child, and did some activities with his family. The Veteran has also expressed feeling frequent depression and anxiety associated with outside activities and driving. The Board acknowledges that the Veteran's symptoms are variable, and that he has periods of severe anxiety which are likely very disruptive to his life. Nevertheless, he has never been found to have near-continuous panic or depression, and the Board does not find that the Veteran's social and occupation impairment is of sufficient frequency and severity that a higher rating of 70 percent is warranted. The Board acknowledges that the Veteran's June 2015 report of having suicidal ideation and thoughts of turning his truck into traffic constitutes a very serious symptom, and this symptom is part of the basis for the increased 50 percent rating. However, the totality of his records indicate that this was a temporary period of thinking about suicide, and is not representative of the Veteran's disability picture for the majority of the appeal period. The Veteran denied suicidal ideation during most of his VA treatment encounters, indicating that the frequency and duration of these thoughts was low, and the Board does not find that they manifested with the severity, frequency, and duration that would warrant a higher 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When rating psychiatric disabilities, although suicidal ideation is a symptom representative of occupational and social impairment with deficiencies in most areas, the presence or lack of evidence of any specific sign or symptom listed in the evaluation criteria does not necessarily establish a particular disability level. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In this case, the Veteran had a short period when he had suicidal ideation, but based on the evidence overall, in which the Veteran generally denied suicidal ideation and was never found to be in danger of harming himself, the limited severity and frequency of this symptom results in occupational and social impairment with reduced reliability and productivity, but no greater. The Board has considered the Veteran's symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a higher rating. See Mauerhan, 16 Vet. App. at 443. The Veteran has been noted to have flashbacks, avoiding crowded spaces, hypervigilance, sleep impairment, and nightmares. Although these symptoms are significant, the Board does not find that they are of a comparable severity to the more severe symptomatology required for a rating of 70 percent. Therefore, the Board finds the overall picture of the Veteran's PTSD is better characterized by occupational and social impairment with reduced reliability and productivity; however, occupational and social impairment with deficiencies in most areas has not been demonstrated. Thus, the Board finds that, absent evidence of symptoms more nearly approximating occupational and social impairment with deficiencies in most areas, a higher 70 percent rating is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against any higher rating than that now assigned, that doctrine is not applicable. 38 U.S.C. § 5107(b). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Slomka, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.